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Hubrecht v. Artus

August 11, 2010

LOUIS HUBRECHT, PETITIONER,
v.
DALE ARTUS, RESPONDENT.



The opinion of the court was delivered by: Richard J. Holwell, U.S. District Judge

MEMORANDUM OPINION

Louis Hubrecht was convicted of murder in the second degree following a jury trial in New York Supreme Court, and was sentenced to a term of 20 years to life. Having exhausted his direct appeals, Hubrecht petitioned this Court for a writ of habeas corpus. The Court referred the petition to Magistrage Judge Frank Maas, who issued a Report and Recommendation (the "Report") denying Hubrecht's claims. Hubrecht timely objected to portions of the Report, arguing that the jury should have been permitted to entertain his theory of self-defense, and that the trial court's refusal to instruct the jury on this theory violated his Sixth and Fourteenth Amendment rights to a fair trial. Hubrecht also argued that his rights were violated when the trial court refused to admit certain pieces of evidence favorable to him. As to the claim that the jury should have been instructed on self-defense, Hubrecht cannot point to evidence from which a jury could reasonably infer that Hubrecht objectively believed deadly froce was necessary to defend himself. As to the claims that the trial court improperly refused to admit certain pieces of evidence, the Court concludes that the court acted well within its discretion. Accordingly, for these and the reasons stated below, the Court denies Hubrecht's petition and his request for a certificate of appealability.

BACKGROUND

At 9:23 a.m. on September 11, 2000, Michael Benny, an emergency medical technician ("EMT"), received a call that a person had been shot at 700 Madison Avenue in New York City. (Trial Tr. at 372--77, 460--61.) When Benny and his partner arrived on the scene two minutes later, Hubrecht greeted them at the door to the building. (Id. at 377--80, 464.) Outside the building, Hubrecht admitted to Benny that he had shot a woman named Barbara Kenna and indicated that her body was upstairs. (Id. at 380--81.) Benny then walked inside the building. As he ascended the stairs, Hubrecht added that he had "mental problems" for which he "takes medication," and that Kenna "keeps harassing us so I shot her." (Id. at 390, 497, 502--03.)

Benny found Kenna's body slumped on the third floor landing directly outside Hubrecht's apartment. (Id. 391--92.) A luggage cart was also on the landing between the body and Hubrecht's door, which was slightly ajar. (Id. at 403--04.) Benny noted multiple bullet wounds in Kenna's chest and a claw hammer in her left hand. (Id. at 391--92, 399, 410.) While he was bent over Kenna, he noticed Valerie Tresnowske, Hubrecht's older sister, pacing in Hubrecht's apartment. (Id. at 407--09, 545.) Phone records indicate that Tresnowske had received a phone call at 8:15 a.m. that morning from the apartment of Alice Walker, Hubrecht's other sister and a resident of 700 Madison Avenue. (Id. at 697--98.) Benny ordered Tresnowske downstairs, to which she replied that Hubrecht had "psychiatric problems." (Id. 408--09, 551-- 53.) After Benny asked her where the gun was, she said that it was "in the back." (Id.) Eventually, Tresnowske went downstairs to join Hubrecht. (Id. at 546.)

The police arrived shortly after the EMTs. Either Benny or his partner identified Hubrecht and his sister to the police, and both Hubrecht and his sister were placed under arrest. (Id. at 713.) (Tresnowske was released later that day.) After securing the area and obtaining a search warrant, one of the detectives entered and searched Hubrecht's apartment. He found a .38 caliber revolver, in plain view, with its safety off. (Id. at 1460--62, 1466--68, 1584.) The gun was registered to Hubrecht, and he held a permit for its use inside the building. (Id. at 1351--52, 1371.) When it was recovered, it contained six spent casings. (Id. at 988, 1007, 1010, 1014--15.) Apart from Kenna's luggage cart, most of the remaining physical evidence was recovered from Kenna herself. At autopsy, the medical examiner recovered five bullets from Kenna's body and determined that a sixth had passed through. (Id. at 785--88, 798, 800--01, 824--26, 895, 906.) The hammer recovered from Kenna's left hand was unremarkable except for the fact that forensic experts could find no fingerprints on the metal head or rubber grip. (Id. at 597--604, 611, 618--22, 659.)

At trial, several experts for both the prosecution and the defense testified about what inferences could be drawn from the physical evidence. Forensic experts on both sides agreed that five bullets had entered Kenna's chest from a downward angle and that a sixth bullet had perforated her arm. (Id. at 2081.) All the shots had been fired from the gun found in Hubrecht's apartment. (Id. at 1105--08.) The evidence was largely inconclusive about the position of Kenna's arms when the shots were fired, except for some evidence that Kenna's right arm was at her side for at least two shots. (Id. at 2099.) The experts disagreed on the precise distance between Kenna and the gun when the shots were fired. Experts for the prosecution testified that the gun was not against Kenna's body when it was fired (id. at 817), and that it was likely more than 28 inches away because of the absence of gunshot residue on Kenna's clothes (id. at 1035). Experts for the defense testified that because there was stippling----abrasions of the skin caused by unburnt particles from the gun----on Kenna's body, four of the shots must have been fired at a distance of less than 24 inches, and one of the four at a distance of less than 12 inches. (Id. at 2094.)

Experts for both the prosecution and the defense were also asked whether various scenarios were consistent with the evidence, including whether Kenna could have been moving forward when the shots were fired, whether Kenna could have had her hands raised during the encounter, and whether anything could be concluded about the order in which the shots were fired. The experts largely agreed that the evidence was simply inconclusive on these questions. The evidence was as consistent with Kenna having one of her hands raised when the shots were fired as it was with Kenna having both her hands at her sides. (Id. at 2097, 2099--2101.) Similarly, it was impossible to determine the order in which the shots were fired or which shot actually killed her. (Id. at 2082.)

Other testimony at trial confirmed longstanding animosity between shooter and victim. Hubrecht owned 700 Madison Avenue and the building next door. Kenna had been his tenant for more than 30 years. (Id. at 98, 100.) For those 30 years, Hubrecht and Kenna lived in the same apartment building and never got along. From very early on, Kenna accused Hubrecht of various improprieties, chief among them his repeated intrusions into her apartment. Kenna believed that Hubrecht would break into her apartment, rearrange her possessions, and sometimes even steal particular items. (Id. at 189--90, 1625--27, 1773--74.) For a time, Kenna resorted to writing her accusations down on her rent checks. (Id. at 1773--74.) She was also verbally abusive to Hubrecht on several occasions, telling him she would "make [his] life miserable" and that she was "going to get [him]." (Id. at 1913.) In 1990, Kenna had a sophisticated alarm system installed to detect the alleged intrusions. (Id. at 313--14, 328--31, 334--35.) The system's alarm was never triggered, but Kenna remained convinced that Hubrecht was continuing to break in. (Id. at 313, 337--39, 341, 348--49, 351.) Kenna resorted to carrying many of her personal belongings with her in a luggage cart whenever she left her apartment. (Id. at 119--20, 216--17.)

For his part, Hubrecht had long been unsettled by Kenna's claims. As a general matter, Hubrecht did not like communicating with his tenants, let alone Kenna, and posted a notice requiring them to communicate to him in writing and not by phone or in person. In the 1990s he began to find even these communications trying, but he did not want to sell the building because he considered them family heirlooms. (Id. at 1692--93.) Renting the building out to commercial tenants, however, was complicated by Kenna's continued presence. Because Kenna was protected by New York's rent control laws, evicting her was no easy task. Tresnowske offered to pay Kenna to vacate her apartment in the spring of 2000, but she refused. (Id. at 133--34.) Hubrecht next served Kenna with a "Notice Terminating Tenancy," citing her false accusations and the alleged damage that the building suffered when she dragged her luggage cart up and down the stairs. (Id. at 1220--22.) Kenna responded by hiring a lawyer to fight the notice. (Id. at 1227--32.) Hubrecht's attorneys advised him to document Kenna's behavior if he wanted to have a chance at evicting her. Acting pursuant to this advice, Hubrecht sent a request for records to the company that maintained Kenna's alarm system. (Id. at 325.) The company responded by letter that it could not disclose any information without Kenna's consent. It sent a copy of the letter to Kenna shortly before the shooting. (Id.)

Although the trial court permitted several witnesses to testify to Hubrecht and Kenna's strained relationship, it refused to admit certain documents found in Kenna's luggage cart that suggested Kenna was obsessed with Hubrecht. Among the items the defense sought to introduce were various diary and calendar entries describing Kenna's belief that Hubrecht was breaking into her apartment, marketing materials for products relating to "counter surveillance," and legal correspondence relating to Kenna's tenancy at 700 Madison Avenue. One document, which the defense highlighted, contained the statement "the paths of glory lead but to the grave" above Hubrecht's name. The defense argued that the documents were evidence of Kenna's state of mind and therefore of whether she was the initial aggressor on the morning of the shooting. The trial court rejected this argument, holding that, barring the existence of any specific threats, it would be improper for the jury to infer Kenna's conduct on a specific occasion from her occasionally expressed thoughts over time. (Id. at 1512--13.) Thus it found the documents from Kenna's luggage cart irrelevant.

The defense also sought to introduce evidence of Hubrecht's state of mind at the time of the incident. Although Hubrecht himself never testified, the trial court did allow Dr. Dawn Hughes, a clinical and forensic psychologist, to render an opinion concerning Hubrecht's psychological state generally as well as an opinion about what Hubrecht was thinking on the morning of the shooting. In particular, Hughes testified that Hubrecht suffered from schizoid personality disorder, a condition marked by detachment from interpersonal relationships and a restricted range of affect. (Id. at 2389.) Even more importantly, Hughes testified that, based on what Hubrecht had told her of the incident, "it might follow[] [that] he did have a perception that he was going to be seriously harmed by Ms. Kenna when this happened." (Id. at 2420--21.)

Hughes's testimony was, however, the only evidence of Hubrecht's mental state at the time of the incident. The defense attempted to introduce through other witnesses numerous statements made by Hubrecht, but the trial court either excluded them or specifically instructed the jury that they could not be considered for their truth. These statements included Hubrecht's 911 call, during which he told the operator that he had shot a woman "because she had a hammer and threatened to kill [him]," and narratives of the incident that Hubrecht related to the police.

In the narratives, Hubrecht claimed that Kenna had loudly thumped on his door around 8:30 a.m. that morning and greeted him with a raised hammer in her hand, shouting "I'm going to kill you." The trial court excluded as hearsay the transcript of the 911 call, Hubrecht's written statements to the police, and any testimony about the statements except for the testimony from Dr. Hughes. (Id. at 104, 387, 749, 755, 886--90.) The court did permit Hughes to testify as to what Hubrecht told her of the incident, but instructed the jury that these statements could be considered only as background for Hughes's opinion and not for the truth of the matter asserted. (Id. at 2368--69, 2513, 2553--54, 2689.)

At the charge conference, the trial court initially agreed to instruct the jury on self-defense. (Id. at 2962.) After hearing re-argument the following morning, however, the court reversed its position and held that the jury could not conclude that Hubrecht acted in self-defense without engaging in baseless speculation about what actually occurred on the morning in question. (Id. at 3001.) Accordingly, the trial court instructed the jury only on murder in the second degree and the defense of extreme emotional disturbance.

The jury convicted Hubrecht of second-degree murder. (Id. at 3319.) The trial court sentenced Hubrecht to a term of 20 years to life, and both the verdict and sentence were upheld by the Appellate Division, First Department. People v. Hubrecht, 769 N.Y.S.2d 36 (N.Y. App. Div. 2003). The Court of Appeals denied certiorari. People v. Hubrecht, 2 N.Y.3d ...


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